The decision in Febles clarifies how Article 1F(b) should be interpreted and applied in Canadian refugee law, and defines what exactly constitutes a “serious” crime for the purposes of the exclusionary provision.

Background

Luiz Alberto Hernandez Febles was originally admitted to the United States as a refugee from Cuba. During his time in the United States, Febles was convicted and served time for assault with a deadly weapon on two occasions.

As a result of his convictions, Febles’s refugee status in the U.S. was revoked, though he later entered Canada illegally and made a claim for refugee protection. The Immigration and Refugee Board (“IRB”) determined that Article 1F(b) excluded Febles from making a refugee claim in Canada, viewing his U.S. convictions as serious non-political crimes.

The Federal Court and the Federal Court of Appeal upheld the IRB’s decision and rejected Febles’s argument that the IRB possessed an obligation to consider factors such as possible rehabilitation and whether he still posed a danger to Canadian society before applying Article 1F(b).

The Supreme Court Decision

Writing for the majority, Chief Justice McLachlin upheld the decisions of the courts below, adopting an “ordinary meaning” approach to interpreting the terms used in Article 1F(b). She noted that the provision only makes reference to the crime at the time it was committed and does not refer to anything subsequent to the criminal act or suggest that the provision should only apply to fugitives.

All that is required, therefore, is that an individual has been convicted of a crime that is punishable by a ten year sentence if it had been committed in Canada. There is no correlating obligation to take into consideration whether the sentence has been served or what, if any, lasting danger the claimant poses to the public.

Justice Abella and Justice Cromwell, in their dissenting reasons, expressed a concern with the majority’s “draconian” interpretation of Article 1F(b). Justice Abella argued that the human rights purposes of the Convention and the serious consequences of excluding someone from making a refugee claim necessitate a cautious interpretation of the exclusionary provision.

There is little or no authority for the proposition that everyone who has committed a serious non-political crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances (para 131).

Implications

From a refugee advocacy standpoint, the majority’s decision in Febles is undeniably troubling. The plain reading approach to Article 1F(b) adopted by the SCC carries with it an implicit presumption that everyone who has committed a serious offence is categorically and indefinitely undeserving of refugee protection. It also undermines the notion that rehabilitation is a key goal of criminal justice proceedings.

In its focus on an ordinary reading of Article 1F(b), the majority glosses over the potentially devastating consequences a broad application of the provision could have on persons that are, in spite of their past convictions, still deserving of refugee protection. Chief Justice McLachlin does note that persons such as the appellant can seek a stay of removal, but she does not discuss the likelihood of stays being granted in appropriate cases.

The majority’s reasons in Febles are surprising given the SCC’s recent decision in Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC 40, in which the SCC grappled with the interpretation of Article 1F(a). Article 1F(a) excludes from refugee protection persons who have committed or are complicit in the commission of crimes against peace, war crimes, and crimes against humanity. In Ezokola, the SCC stressed the importance of using a cautious approach when applying a provision that could bar potential refugee claimants from having their cases heard.

While Canada is not alone in its non-contextual approach to the interpretation of Article 1F(b), countries such Belgium, France, and the United Kingdom have recognized the importance of considering the entirety of a potential claimant’s circumstances when deciding whether or not to exclude that person from making his or her refugee claim.

Given that those who are at risk of falling under the purview of Article 1F(b) have, by definition, been convicted of serious crimes, it is easy to see how this subset of refugee claimants would not evoke much sympathy.

On the other hand, the consequences of taking away a person’s opportunity to have his or her refugee claim heard are very serious, and it seems problematic to suggest that everyone who has been convicted of a serious crime is indefinitely undeserving of refugee protection regardless of their circumstances and without consideration of the possibility of rehabilitation.